161 N.E. 479 | Ill. | 1928
Lead Opinion
The circuit court of Cook county dismissed the bill of complainants for want of equity. It sought to enjoin the enforcement of an ordinance of the city of Chicago licensing and regulating the business of manufacturing confectioners. Complainants prosecute this appeal.
The bill avers substantially that the four complainants are engaged in business as manufacturing confectioners and sets out the number of square feet contained in their respective factories. It alleges that there are about one hundred and fifty other individuals, firms and corporations engaged in the same business; that there are also from five hundred to one thousand individuals and firms engaged in *321 manufacture in connection with the sale, at retail, of confectionery, and alleges that all those persons, firms and corporations are claimed by the city to come within the terms of the ordinance set out in the bill. It sets out sections 1997 and 2003 of the municipal code. The first section referred to defines a manufacturing confectioner as any person, firm or corporation that carries on or engages in the business of manufacturing, for the purpose of sale to the wholesale or retail trade, any candies, confections, sugar ornaments, taffy apples, candied nuts, shelled nuts or peanuts, marzipan, chewing gum, lozenges, cough drops, fruit or flavored tablets, popcorn or popcorn candy, or any other candies, confectionery or similar products, and provides that no person shall conduct such business without first obtaining a license. Section 1998 requires an application for a license and requires inspection of the premises of a proposed licensee by the commissioner of health. Section 1999 classifies manufacturing confectioners according to the floor area devoted to manufacturing and storage purposes and provides for a graded license fee based on the floor area. Section 2000 fixes the license period. Section 2001 provides for the revocation of a license by the mayor, upon recommendation by the commissioner of health, whenever it shall appear that the licensee has violated the provisions of any law of the State of Illinois or of any ordinance of the city relating to the carrying on of his business. Section 2002 provides for the sanitary requirements of such establishment. The last section fixes a penalty for failure to comply with the ordinance. Prosecutions were begun and others threatened against complainants and others to recover the penalties. The bill charged that the business of complainants is not a business requiring regulation for the sake of the public health, and that said sections of the code are invalid, unconstitutional and void. They prayed for an injunction restraining the city from enforcing the ordinance. *322
The city answered the bill, averring, among other things, that the business conducted by complainants is of such a nature that it affects the health of the people at large by reason of the process of manufacture and by reason of the fact that the product of such concerns is used as food, and that many of such manufacturers will not observe health regulations unless rigid inspections and restrictions are enforced; avers that it is necessary for the city to expend large sums of money in making inspections of such manufacturing plants, and denies that the business of manufacturing confectioners does not need to be inspected or regulated for the sake of public health; admits that the city had made demands upon complainants for the payment of the license fees provided for in the code and that it intends to institute prosecutions against complainants for failure to take out licenses as required by the ordinance.
Upon the trial complainants introduced evidence showing the number of concerns engaged in the business and the nature of the products used in their business. Defendant introduced in evidence the testimony of a physician of the health department of the city for the purpose of showing the need of inspection of the business of complainants, promotive of sanitary conditions, materials used in the manufacture of confectionery, the nature of the inspection and of the regulations of the business by the city. The court held that the several sections of the code were valid and enforceable and dismissed the bill for want of equity.
The errors relied on for reversal of the decree are: (1) The city has not been expressly delegated power by the Cities and Villages act to regulate the business of complainants; (2) clause 78 of section I of article 5 of the act, giving the city power "to do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease," does not authorize the city to pass the ordinance licensing the business of complainants. *323
Without setting out in extenso the sanitary requirements of the ordinance, it is sufficient to say that under the sole question presented they are conducive to a healthful environment in the manufacture and handling of confectionery. The ordinance is not challenged in that respect nor on the ground that it is not a proper police regulation if a valid ordinance.
The first contention of counsel for appellants is that the city has no inherent power to license occupations, and that the power to license must be found in the charter, expressly granted or as a necessary incident to carry out some power expressly granted. Counsel for appellee do not contend that the city has authority to license occupations except as an incident to regulation.
Reliance is placed by appellants upon Barnard Miller v.City of Chicago,
It is contended by appellee that the power to license, as limited by the above cases, is applicable and supports the *325
ordinance now attacked. The insistence is that the ordinance is not one to license the business of appellants as a business or for the privilege of engaging in it, but is in furtherance of the limitations upon the licensing power announced in the cases cited and in numerous other cases from City of Cairo v. Bross,supra, to the last decision of this court. Appellee justifies the licensing power exercised upon the principle that the business of appellants, if not properly safeguarded, is one tending to injure the public health by the use of deleterious ingredients employed in the manufacture of confectionery and uncleanly environment, and is therefore a proper subject for its exercise under clause 66 of section I of article 5 of the Cities and Villages act. The case of Moy v. City of Chicago,
As was said in that case, the ordinance now considered does not prohibit what the statute permits. There is no repugnancy between them. The general policy underlying both is the promotion of health in the production and sale of wholesome articles eaten by children and adults. In City of Chicago v.Drogasawacz,
Counsel say the power to regulate manufacturing confectioners has not been conferred upon cities, and that if the power exists it must be under clause 78. It is further said the licensing of such establishments cannot be justified as a health measure because the regulation provided for is required under State statutes, but they make no reference to any such statute. In City of Chicago v. Drogasawacz, supra, it was contended that cities had no authority to pass the sanitary provisions contained in the ordinance there in question and to license as an incident thereto, as that subject was fully covered by sections of the statute with reference to the inspection of establishments where food is prepared, manufactured, packed, stored, distributed or sold. It was said in reply to the contention: "Municipal ordinances *329 must be in harmony with the general laws of the State, but this ordinance does not in any way conflict with the State law." The ordinance now under consideration conflicts with no statute to which our attention has been called. The terms of the ordinance confer power to be exercised concurrently with, but which does not conflict with, a like power vested in or exercised by the State.
It is argued that clauses 50 and 53, relied on in part by appellee, not embracing candy and confectionery as subjects of regulation and inspection, afford no authority for regulating or inspecting the business of appellants. But it was held inCity of Chicago v. Drogasawacz, supra, that the general words "and other provisions" in those clauses include bakery products, which clearly are food. Bouvier's Law Dictionary defines "provisions" as food for man; victuals. In Savage v.Jones,
The universal use of confectionery of all sorts by adults and by children renders it pre-eminently a fit subject for surveillance as an article of commerce under pure food laws and its manufacture and preparation for commerce where it is manufactured. We are of the opinion the ordinance in question is a valid police regulation and within the competence *330 of the city to enact. That is the only question argued or presented by the assignment of errors.
The decree of the circuit court sustaining the demurrer to the bill and dismissing it for want of equity is therefore affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Crow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Decree affirmed.